CAROL CASSELLI VS. THOMAS OECHSNER (L-9604-15, BERGEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3917-16T2
CAROL CASSELLI,
Plaintiff-Respondent,
v.
THOMAS OECHSNER, a/k/a TOMMY
X. TAYLOR a/k/a TOMMY TAYLOR
a/k/a THOMAS X. TAYLOR a/k/a
THOMAS TAYLOR,
Defendant-Appellant.
Argued May 23, 2018 — Decided June 26, 2018
Before Judges Koblitz, Manahan and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No.
L-9604-15.
Steven A. Varano argued the cause for
appellant (Law Offices of Steven A. Varano,
P.C., attorneys; Steven A. Varano, Joseph P.
Slawinski, Ilya Kraminsky and Albert Seibert,
on the brief).
Craig Weinstein argued the cause for
respondent (The Law Offices of Craig
Weinstein, attorneys; Craig Weinstein and
Katherine Moore, on the brief).
PER CURIAM
Defendant Thomas Oechsner appeals from an April 4, 2017
judgment for $85,000 plus interest, entered after a three-day non-
jury trial. Deferring to the court's credibility findings as we
must, we affirm.
In 2011, plaintiff Carol Casselli met defendant at the
Player's Club, a gentlemen's club in South Hackensack where
plaintiff was the manager. In June or July of that year, defendant
began borrowing money from plaintiff in cash. As security for the
loans, defendant provided plaintiff with post-dated checks.
Towards the end of 2011, defendant borrowed a significant
cash lump sum from plaintiff. Defendant testified he borrowed
$50,000 from plaintiff and agreed to pay back $100,000 within two
years, while plaintiff testified she loaned defendant $128,250.
Defendant provided plaintiff with post-dated checks for this
transaction also. In January 2012, plaintiff's attorney drafted
a $128,250 promissory note, which defendant signed in April 2012.
Defendant testified he made cash payments until the $100,000
he agreed to pay was repaid in full in December 2013. Plaintiff
testified defendant stopped making payments in January 2014,
although the debt was not repaid. In March 2014, plaintiff
deposited the post-dated checks plaintiff had given her, which
were returned for lack of funds.
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On May 12, 2014, plaintiff presented defendant with a
handwritten letter stating he owed $85,000 on the promissory note,
which he signed two days later. Defendant added a note saying
that no criminal charges could be filed against him.
Plaintiff did not receive any further payments from defendant
after this letter was signed. She filed criminal charges and,
although defendant was arrested and indicted for eighteen counts
of issuing bad checks, N.J.S.A. 2C:21-5, the indictment was
subsequently dismissed.
After the non-jury trial, the trial court gave a
comprehensive, well-reasoned oral decision finding the testimony
of both parties improbable and incredible. The court found
defendant's signature on the promissory note proved the existence
of a loan and agreement between the parties. Based on the signed
handwritten letter, the court found the parties acknowledged the
amount due on the earlier note as $85,000. The court rejected
defendant's fraud in the inducement, usury, and duress defenses
and entered judgment in favor of plaintiff.
In a non-jury trial, the trial court's factual findings
"should not be disturbed unless they are so wholly insupportable
as to result in a denial of justice." Jecker v. Hidden Valley,
Inc., 422 N.J. Super. 155, 163 (App. Div. 2011) (quoting Rova
Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974)).
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"We defer to the credibility determinations made by the trial
court because the trial judge 'hears the case, sees and observes
the witnesses, and hears them testify,' affording it 'a better
perspective than a reviewing court in evaluating the veracity of
a witness.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting
Cesare v. Cesare, 154 N.J. 394, 412 (1998)). "Only when the trial
court's conclusions are so 'clearly mistaken' or 'wide of the
mark'" should an appellate court "interfere to 'ensure that there
is not a denial of justice.'" Ibid. (quoting N.J. Div. of Youth
& Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
"A trial court's interpretation of the law and the legal
consequences that flow from established fact are not entitled to
any special deference." The Palisades At Fort Lee Condo. Ass'n,
Inc. v. 100 Old Palisade, LLC, 230 N.J. 427, 442 (2017) (quoting
Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140
N.J. 366, 378 (1995)).
Defendant contends his testimony was credible and argues the
trial court's findings of fact are not supported by the credible
evidence present in the record. "[F]indings by a trial court are
binding on appeal when supported by adequate, substantial,
credible evidence." Gnall, 222 N.J. at 428. "A trier of fact 'is
free to weigh the evidence and to reject the testimony of a
witness'" if it "contains inherent improbabilities or
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contradictions which alone or in connection with other
circumstances in evidence excite suspicion as to its truth." CPC
Int'l, Inc. v. Hartford Accident & Indem. Co., 316 N.J. Super.
351, 375 (App. Div. 1998) (quoting In re. Estate of Perrone, 5
N.J. 514, 521-22 (1950)).
The trial court found defendant's signature on the promissory
note proved the loan and was subject only to defendant's defenses.
Defendant's testimony was insufficient to sustain his affirmative
defenses of fraudulent inducement or usury.
The only testimony at trial came from the parties. The trial
court was free to reject the parties' testimony and rely instead
on the documentary evidence. The court found defendant's testimony
that the underlying transaction was a loan of $50,000 to be repaid
by $100,000 within two years improbable, incredible, and not
supported by the evidence in the record. Although defendant
submitted evidence of post-dated checks as allegedly corroborating
his testimony, the checks did not speak to the issue that the
original loan amount was $50,000 and required repayment of double
that amount within two years. The court found that the only
competent believable evidence of an agreement between the parties
were the promissory note and the handwritten letter, both of which
were signed by both parties.
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Similarly, the court found defendant's testimony that he
repaid the full $100,000 not credible. Defendant claimed he paid
plaintiff in cash and did not ask for or receive receipts for
those payments. The only evidence in the record of payments from
defendant to plaintiff was $7000 in money order payments from
March to April 2012.
Well-settled contract law provides that "courts enforce
contracts 'based on the intent of the parties, the express terms
of the contract, surrounding circumstances and the underlying
purpose of the contract.'" In re. Cty. of Atlantic, 230 N.J. 237,
254 (2017) (quoting Manahawkin Convalescent v. O'Neill, 217 N.J.
99, 118 (2014)). "A reviewing court must consider contractual
language 'in the context of the circumstances' at the time of
drafting and . . . apply 'a rational meaning in keeping with the
expressed general purpose.'" Ibid. (alteration in original)
(quoting Sachau v. Sachau, 206 N.J. 1, 5-6 (2011)). "The primary
standard governing the interpretation of an integrated agreement
is to use 'the meaning that would be ascribed to it by a reasonably
intelligent person who was acquainted with all the operative usages
and circumstances surrounding the making of the writing." YA
Global Invs., L.P. v. Cliff, 419 N.J. Super. 1, 11 (App. Div.
2011) (quoting Deerhurst Estates v. Meadow Homes, Inc., 64 N.J.
Super. 134, 149 (App. Div. 1960)).
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"'[I]f the contract into which the parties have entered is
clear, then it must be enforced' as written." In re. Cty. of
Atlantic, 230 N.J. at 254 (alteration in original) (quoting Maglies
v. Estate of Guy, 193 N.J. 108, 143 (2007)).
Defendant argues the trial court erred in applying the parol
evidence rule because parol evidence is admissible to show the
existence of or lack of consideration to support a contract.
Defendant highlights plaintiff's inconsistencies between her grand
jury testimony and her trial testimony regarding the manner in
which the $128,250 was allegedly loaned to defendant.
"In general, the parol evidence rule prohibits the
introduction of evidence that tends to alter an integrated written
document." Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div.
2009) (quoting Conway v. 287 Corp. Ctr. Assocs., 187 N.J. 259, 268
(2006)). "[T]here is a 'distinction between the use of evidence
of extrinsic circumstances to illuminate the meaning of a written
contract, which is proper, and the forbidden use of parol evidence
to vary or contradict the acknowledged terms of an integrated
contract.'" YA Global Invs., 419 N.J. Super. at 12 (quoting Garden
State Plaza Corp. v. S.S. Kresge Co., 78 N.J. Super. 485, 497
(App. Div. 1963)).
The promissory note does not provide the amount of
consideration received by defendant, but merely recites "[i]n
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return for value received." Defendant claims he was only loaned
$50,000, while plaintiff claims she loaned defendant $128,250.
The trial court rejected both parties' testimony as not credible.
Turning to the other evidence in the record, the court found the
promissory note to be the only competent evidence that showed an
agreement between the parties, and defendant's signature on the
note proved defendant's obligation on the loan.
The promissory note's "Borrowers' Promise to Pay" provision
states that "[i]n return for value received," defendant promises
to pay $128,250.00 plus interest to plaintiff. The "Interest"
provision of the note states:
Interest shall be charged on the principal
amount of ONE HUNDRED TWENTY EIGHT THOUSAND
TWO HUNDRED FIFTY AND 00/100 ($128,250.00)
DOLLARS, at the annual rate of three (3%)
percent for the life of said loan, which
principal and interest shall be payable
weekly, beginning on March 1, 2012, on the
Monday of each and every week for a period of
two and one-half (2.5) years until paid in
full.
[Emphasis added.]
The "Payments" provision of the note states the repayment terms
somewhat differently:
[Defendant] will pay principal and interest
by making payments each and every week.
[Defendant] will make the weekly payments on
the Monday of every week beginning March 1,
2012. [Defendant] will make these payments
every week until all of the principal,
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interest and any other charges described
herein that may be owed under this Note are
paid in full. If on September 24, 2012,
[defendant] still owes amounts under this
Note, [defendant] will pay these amounts in
full on that date, which is called the
"Maturity date" unless otherwise agreed to in
writing by the parties.
[Emphasis added.]
The trial court stated that in spite of this discrepancy, there
was "an absence of ambiguity in the contract."
The interpretation of a contract is subject to de novo review.
In re. Cty. of Atlantic, 230 N.J. at 254. The promissory note's
"Borrowers' Promise to Pay" provision clearly states defendant's
obligation to pay the amount in the note plus interest in exchange
for value received. Because those terms are clear, they should
be enforced as written. Ibid. The contradictions in the
"Interest" and "Payments" provisions, as the trial court pointed
out, are not material to the issue of whether defendant obligated
himself under the terms of the note.
Both parties signed a handwritten May 12, 2014 "To Whom it
May Concern" letter stating the amount due on the promissory note.
The letter states in part: "This is an agreement between
[defendant] and [plaintiff] that the balance owed on the
[p]romissory [n]ote date[d] Feb. 1, 2012 is $85,000 plus the
interest as stated on the note. . . ." Before signing the letter,
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defendant told plaintiff he would have to have his attorney look
at the letter. Defendant signed the letter two days later, adding
a note next to his signature stating that plaintiff could not
pursue criminal charges against defendant regarding bad checks.
The trial court based its determination of damages on the
handwritten letter. Defendant argues the handwritten letter was
inadmissible under N.J.R.E. 408 for purposes of proving a disputed
claim because it was an offer of settlement.
In determining the amount defendant owed plaintiff, the trial
court, having rejected both parties' conflicting testimony, relied
on the handwritten letter "as reflecting their mutual
acknowledgement that that was the amount due under the note at
that time." The court did not, however, "find [the letter] to be
a binding agreement based on [d]efendant having altered it after
[p]laintiff presented it and [p]laintiff's lawyer having
characterized it as a settlement proposal that was rejected and
[thereafter] withdrawn." Although N.J.R.E. 408 bars introduction
of evidence of a settlement to prove the amount of a disputed
claim, it allows such evidence when, as here, it is offered for a
different purpose.
Defendant argues that he signed the handwritten letter under
duress because he was concerned about criminal prosecution and
potential imprisonment. Duress is "that degree of constraint or
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danger, either actually inflicted or threatened and impending,
sufficient in severity or in apprehension to overcome the mind or
will of a person of ordinary firmness . . . ." Smith v. Estate
of Kelly, 343 N.J. Super. 480, 499 (App. Div. 2001) (quoting
Rubenstein v. Rubenstein, 20 N.J. 359, 365 (1956)).
A party seeking to be relieved of his or her contractual
obligation must provide "clear and convincing proof" of duress.
Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). The trial court found
it illogical that defendant would sign the letter and then not
make payments if he feared criminal prosecution because "it would
only have been his payment, not his signature, that would've
secured the forbearance."
The trial court's factual findings were not "clearly
mistaken" or so "wide of the mark" that we need "interfere" to
prevent "a denial of justice." Gnall, 222 N.J. at 428.
Affirmed.
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